Changes to Copyright Law in 2013

(From a note by Tim Padfield on the Archives Listserv)

Copyright law is set to change significantly over the next year. This note sets out some expected changes that are likely to have an impact on archivists.

The Enterprise and Regulatory Reform Bill is currently before Parliament. It contains copyright elements that will need to be supplemented by regulations, if they are passed, but the Intellectual Property Office (IPO) is already working on drafting. Commencement might be as early as October 2013. Important points for archives are:

• Removal of the 2039 terminal dates and their replacement by (probably) standard terms, notably life plus 70 years. There might be a short transition period (5 years, as in the USA?). This will remove all works created before about 1870 or a bit earlier from copyright at a stroke.
• Introduction of a licensing scheme for the use of orphan works, so long as a diligent search has been carried out. Licensing is likely to be by a government body. This will not assist mass digitisation. We shall know more about the impact of these changes once the Act has received Royal Assent and in particular once we can see the regulations.

• On 20 December the Government published its long-awaited white paper (http://www.ipo.gov.uk/response-2011-copyright-final.pdf) on reform of the copyright exceptions. The changes outlined will have huge implications for the general public, for archivists and librarians, for museums professionals and for public sector organisations. Implementing regulations are intended to come into force in October 2013. There will be no further consultation on the policy, but the draft regulations will be published for comment on the technical details

General points

The motivation of the Government has been set out (p 8 para 6): 'Economic growth is a principal motivator but fairness, the reputation of the copyright system, the consequences of increasingly widespread digital technologies and a range of wider social goods such as education and culture are also important considerations.'

Contracts will be prevented from overriding exceptions where this is permitted and desirable. There will be no general provision on this because some exceptions must be able to be replaced by contract.

Private copying

People who own a copy of any kind of copyright work (e.g. music recording, ebook) will be able to copy it to any medium for their own personal use. No copy may be supplied to anyone else (e.g . family, friend). Contract override will be prevented.

Quotation

Fair dealing for criticism and review to be extended to all forms of quotation, for instance to allow citation and bibliographies of books (titles are capable now of being copyright works in themselves) and in articles. Contract override will be prevented.

Research and private study

Fair dealing and the library and archive copying exceptions for users are to be extended to all types of work (though the IPO appears to think, mistakenly, that library and archive copying already applies to artistic works (p 32 para 3, p 35 para 1)). Contract override will be prevented. The IPO is to consider removing or simplifying the requirement for a declaration form when copies are made by libraries and archives. A new exception will permit access to digitally-preserved material on dedicated terminals on the premises of libraries and archives. This exception does not currently exist in UK law but I fear that some archives are infringing by already providing this service. If so they should consider whether they should use dedicated terminals for online access to the records so that they are at least compliant when the law changes.

 Archives get special mention in relation to this subject in the introductory sections (p 8 para 3): 'Archives stand to save money from being able to copy works and share them by computer terminals on their premises rather than shifting fragile documents back and forth from storage, and both users and society will benefit from improved access to those works.'

Education

The non-reprographic copying exceptions and examination exception will be widened and replaced by a new fair dealing exception for non-commercial educational use. This will apply for instance to use of material on whiteboards and the publication on intranets of past exam papers. It remains to be seen how use for examination (which currently includes research for an examined thesis) will be covered. The exception will apply to all organisations and individuals, not just educational establishments, and so would potentially apply to all archives.

Licensing of reprographic copying for educational use will continue, but the exception permitting copying where a licence is not available will be extended and all kinds of work will be covered. The definition of an educational establishment will be widened to cover institutions with an educational purpose, such as museums. Archives are not mentioned, but maybe they will be included. An educational copying licence would be required. Distance learning will be covered.

Disabled

Exceptions for the visually impaired to be extended to all disabled where the disability prevents access, and to all kinds of work unless the work is available commercially. Contract override will be prevented.

Preservation

Preservation copying is to be extended to museums and galleries, is to apply to all kinds of work in the permanent collection of a library, archive, museum or gallery so long as a replacement is not commercially available, and is to be permitted as often as necessary for the preservation purpose. Contract override will be prevented. The procedure for identifying institutions that may preserve folk materials is to be simplified.

 Public administration

The public administration exceptions are to be extended to permit works that are publicly available (even if unpublished) to be made available online (and so reduce the number of FoI applications). Contract override will be possible for unpublished works. This might be important for archives, but that depends on the details.

Copyright Notices

The IPO will issue copyright notices for non-experts on general interest issues where there appears to be confusion about copyright law. This may be on its own initiative or as result of a request. Notices would be authoritative and would be taken into account by the courts but would be non-statutory. They will inform any future review of the CDPA.